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Can a website systematically infringe copyrights and still claim DMCA compliance?

New York, NY |

Avvo is using my photograph to build a "profile" without permission from me, my employer (presumably the copyright holder) or the photographer.

Can they claim compliance with the DMCA when they are knowingly and systematically taking photographs from professionals' websites?

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Attorney answers 2


It is, of course, lawful to create a "profile" of someone by compiling publicly-available information about the person and then publishing that profile on a website. So you have no cause to complain about that conduct.

You seem perturbed, however, that your published profile also includes a photograph of you. The copyright analysis as to the photograph requires two inquiries: (1) Can the profile-creator publish someone else's photograph of you as part of your profile? and (2) Can the profile-creator copy someone else's photograph of you, modify it into a thumbnail image and then publish that thumbnail?

If done right, the answer to both inquiries is very likely yes.

The copyright rationales get nuanced fairly fast but, to directly respond to your question, the DMCA has no relevance to the question so don't let those statutes complicate matters for you.

You should read Perfect 10 v. Amazon [link below]. The case addressed whether it's lawful for a search engine to publish someone else's full-size photographs via "inline" links on the search engine website and to copy and publish thumbnail sizes of those photographs. Which search engines and other e-commerce websites have been doing many millions of times A DAY for many, many years.

When answering the first inquiry, the Ninth Circuit held that the process of inline linking does not infringe the copyright in the linked-to material. When answering the second inquiry, the Ninth Circuit held that a search engine's copying and publication of thumbnail images were fair uses of the original full-size photograph.

Are the Perfect 10 holdings the law nationwide? No ... but when other Circuit Courts have the opportunity to address these issues the Perfect 10 rationales will be very persuasive. Are the Perfect 10 holdings directly analogous to what websites like Avvo are doing when they make use of someone else's photographs? No ... but they could be depending on how close those websites adhere to how search engines, as a technical matter, lawfully make use of the millions of photographs that they copy and publish.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.


Apparently you provided your photo to your employer, and with it, the rights to use it for promotional purposes - why don't you consider Avvo a promotional purpose within that grant of rights?

There's lots of publicly available information about you (and everyone else) thanks to the reach of the internet, and many people quite willingly give up their privacy rights through their internet use. You did, when you gave your photo (or took the photo at their request). The perfect 10 case may not govern, since Avvo doesn't use the same types of photos for the same uses as they did, but I think you consented to this use and agree that Avvo's use of profiles gleaned from public information doesn't require your permission.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.